1 2025:CGHC:31802 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3420 of 2016 Shivraj Singh Kanwar S/o Late Shri Ganpat Singh Kanwar, Aged About 19 Years R/o Gram Ameradih, Tahsil And P. S. Malkharoda, District Janjgir Champa Chhattisgarh. ... petitioner versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Panchayat And Social Services, Mantralaya, Naya Raipur, Chhattisgarh. 2 - Collector, Janjgir Champa, District Janjgir Champa Chhattisgarh. 3 -Chief Executive Officer, Janpad Panchayat Malkharoda District Janjgir Champa Chhattisgarh. 4 -Block Education Officer, Malkharoda, District Janjgir Champa Chhattisgarh. 5 - District Education Officer District Janjgir Champa Chhattisgarh. ... Respondents For Petitioner : Mr. Prateek Singh Thakur, Advocate For Res./State : Mr. Prafull N. Bharat, Advocate General with Mr. Dilman Rati Minj, Government Advocate and Ms. Neeta Tulsani, Panel Lawyer For Res. No. 3 : Mr. Gairy Mukhopadhyay, Advocate Hon'ble Shri Justice Sachin Singh Rajput Order on Board 09.07.2025 1. Instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioner seeking following reliefs :- “10.1. Kindly be pleased to direct the respondent to consider the candidature of the petitioner for compassionate appointment on 2 the post of Clerk, in the education department. 10.2. Any other relief which this Hon’ble Court deems fit and proper may also kindly be granted to the petitioner, in the interest of justice. 10.3 to kindly be quashed/set-aside the order dated 03.09.2015 issued by the District Education Officer, Janjgir-Champa.” 2. Facts of the case, as reflected from the petition, are that the petitioner's father Late Shri Ganpat Singh Kanwar was working on the post of Assistant Teacher & In-charge Head Master at Government Primary School Ameradih Janapad Panchayat, Malkharoda, District- Janjgir-Champa (C.G.). He died in harness on 20.12.2007 at District Hospital, Raigarh (C.G.). Mother of the petitioner namely Moharmati duly made an application on 12.05.2008, before respondent No. 4-Block Education Officer, Malkharoda District-Janjgir-Champa (C.G.), mentioning therein that at present, since other legal heirs of the Late Ganpat Singh Kanwar are minors and do not have the requisite educational qualification for compassionate appointment, hence the application for compassionate appointment will be given, when her son – Shivraj Singh attains the minimum age & educational qualification for compassionate appointment. Thereafter, respondent No. 4 – Block Education Officer, Malkharoda District Janjgir-Champa had sent a letter to the District Education Officer, Janjgir mentioning the facts, as stated by mother of petitioner in her application, for seeking further direction. It is pleaded that now the petitioner being duly eligible for appointment on the post 3 of clerk; as he has passed Higher Secondary Examination, submitted a representation before the District Education Officer, Janjgir, for compassionate appointment on the post of clerk. 3. It is next pleaded that as per Serial No. 15.8 of the circular dated 14/06/2013, issued by the General Administration Department, State of C.G. - यदि दिवंगत शा सकी य सवंकी की विवंधवं पत्नी द्वा रा स्वंम की अनीकी प विनीयक्तित हेत असहेमवित व्यत कीरात हुए उसकी स्था नी परा परिरावं रा की अवंयस्की सस्य की$ वंयस्की हे$नी परा अनीकी प विनीयक्तित नी की म ग की जा य त$ विनीय$त द्वा रा इस सम्बन्ध म* विवंधवं पत्नी स अतरिराम आवंनी पत्र प्रा प्त विकीय जा यग तथा अवंयस्की सस्य की वंयस्की हे$नी परा उस उसकी शा*क्षणि2की य$ग्यत की आध रा परा त4तय / चतथा6 शा2 की प परा अनीकी प विनीयक्तित नी की की य6वं ई की जा एग.” 4. It is prima facie apparent that the respondent authorities has not considered the candidature of petitioner for compassionate appointment arbitrarily by ignoring the fact that the petitioner's mother has duly made an application on 12.05.2008 itself i.e., within a reasonable period of date of death of his husband and huge delay has been caused by the respondent's department itself, for which, the petitioner cannot be held responsible and further the petitioner cannot be barred from appointment for same. 5. Respondents/ State has filed its return pleading inter alia raised preliminary objection that the father of the petitioner i.e. Late Ganpat Singh Kanwar died in harness on 20/12/2007 and the petitioner has approached this Hon'ble Court after lapse of about 9 years seeking compassionate appointment and, thus, the petition suffers from delay & latches and on this count alone, the writ petition is liable to be 4 dismissed. It is further pleaded that Hon'ble Apex Court in the matter of Abhishek Kumar v. State of Haryana & Ors. 1 , has held that application for compassionate appointment is required to be considered in terms of Rule & Regulations, which were in existence at the time of death of the concerned employee. It is further contended that well settled law with regard to compassionate appointment is that, the purpose of giving compassionate appointment to a dependent of deceased government servant, who died in harness, is to help family of the deceased government employee to tie over the same immediate financial crises, which arises due to certain demise of the sole bread earner of the family. The purpose of giving compassionate appointment is also to overcome the situation of sudden penury which arises upon the death of the bread earner of the family. It is submitted that, the petitioner and his family members have survived for more than 9 years and, thus, the petition at such a belated stage is not tenable, as it suffers from delay & latches and thus the petition deserves to be dismissed. It is further pleaded that the main contention of the petitioner is to consider his case for compassionate appointment as per Circular dated 14/06/2013 [Annex. P-6]. As regards the allegation of the petitioner, it is submitted that the case of the petitioner for compassionate appointment is required to be considered as per existing policy which was prevailing at that point of time. It is submitted that at the time of death of petitioner's father Circular dated 10/06/2003 was existing and, therefore, the case of the petitioner was liable to be considered in accordance with the same and as per Circular dated 10/06/2003, the dependents of the deceased employee are entitled for 1 (2005) 12 SCC 44 5 compassionate appointment whereas there is no mention that the dependents, who are minor can apply for compassionate appointment after getting majority and it has been also mentioned that such cases will be decided within three years and as the application made by the petitioner was not as per the provision of Circular dated 10/06/2003, therefore, the petitioner is not entitled for compassionate appointment. It is further submitted that, the petitioner is required to be considered for compassionate appointment as per existing policy/circular dated 10/06/2003, which was in force at the time of death of father of the petitioner but as the application made by the petitioner was not as per existing policy/circular dated 10/06/2003 [Annex. R-1], therefore, vide letter dated 03/09/2015, the District Education Officer, Janjgir-Champa informed the petitioner that his appointment on compassionate ground is not possible. 6. Being aggrieved & dissatisfied with inaction on the part of the respondents-Department, instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioner. 7. Learned counsel appearing for the petitioner would submit that at the time of death of father of the petitioner, he was a minor. Her mother, on behalf of the petitioner, made an application on 12.05.2008 and informed that her children are minor and, therefore, as soon as they become major, an application for compassionate appointment would be made. After the petitioner attained the age of majority, he made an application for compassionate appointment with the respondents/authorities vide Annexure P/5. After filing of the application of the petitioner, the same was rejected by the respondents/State on 6 03.09.2015 vide Annexure P/10. He would further submit that though this order was passed in the year 2015, but the same was never communicated to the petitioner and he came to knowledge of the said order after filing of the writ petition, therefore, the same has been brought on record by way of amendment. According to order dated 03.09.2015, the policy dated 10.06.2003, bearing No. F-7-4/2002/1-3 demonstrate that there was no provision for appointment of the minor children on compassionate ground and the case of compassionate appointment ought to have been decided within a period of three years, as such, application filed by the petitioner was not in accordance with the policy of 2003, therefore, the same was not considered. He would further submit that when the petitioner made an application for compassionate appointment after attaining the age of majority, policy No. F-4/2012/1-3 dated 14.06.2013 was an existence and as per sub clause 4 and 8 of Clause 15 which reads as under: यदि दिवंगत शा सकी य सवंकी की विवंधवं पत्नी द्वा रा स्वंम की अनीकी प विनीयक्तित हेत असहेमवित व्यत कीरात हुए उसकी स्था नी परा परिरावं रा की अवंयस्की सस्य की$ वंयस्की हे$नी परा अनीकी प विनीयक्तित नी की म ग की जा य त$ विनीय$त द्वा रा इस सम्बन्ध म* विवंधवं पत्नी स अतरिराम आवंनी पत्र प्रा प्त विकीय जा यग तथा अवंयस्की सस्य की वंयस्की हे$नी परा उस उसकी शा*क्षणि2की य$ग्यत की आध रा परा त4तय / चतथा6 शा2 की प परा अनीकी प विनीयक्तित नी की की य6वं ई की जा एग.” 8. Learned counsel appearing for the petitioner would submit that in view of aforesaid provisions, petitioner is entitled for consideration of compassionate appointment, therefore, rejection of the application of the petitioner for compassionate appointment cannot be sustained and 7 it is liable to be set aside. To buttress his submission, he placed reliance upon the judgment of the Supreme Court in the matter of N.C. Santosh v. The State of Karnataka and others 2 , State Bank of India & others v. Sheo Shankar Tewari 3 , State Bank of India v. Raj Kumar 4 and judgment passed by the Division Bench of this Court in the matter of State of Chhattisgarh & others vs. Smt. Sweta Singh 5 . He would further submit that application for appointment on compassionate ground is made belatedly, therefore, it is prayed that the delay may not come to rescue of the respondent/State in deciding the case of the petitioner for appointment on compassionate basis, as at the time of the death of the father of the petitioner, he was minor and his right was protected by his mother by filing an application before the Block Education Officer, Malkharouda, District Janjgir-Champa stating that as soon as the petitioner became major, application for compassionate appointment will be made. 9. Ms. Tulsani, learned Panel lawyer appearing for the respondent/ State and Mr. Garry Mukhopadhyay, learned counsel appearing for respondent No. 3 while supporting the impugned order would submit that the petitioner was minor at the time of death of his father and as there was no provisions for considering the case of minor for grant of compassionate appointment in the policy/circular dated 10/06/2003 prevailing at the time of death of father of petitioner, as such, there is no illegality or infirmity in the order impugned warranting interference of this Court. Therefore, the writ petition, being sans merit, is liable to be 2 (2020) 7 SCC617 3 (2019) 5 SCC 600 4 (2010) 11 SCC 661 5 Writ Appeal No. 199 of 2022, decided on 19.09.2022 8 rejected. 10. I have considered the submissions of learned counsel appearing for the parties and perused the material available on record. 11. It is well-settled that appointment on a compassionate ground is not a source of recruitment and that is an exception to the general rule that recruitment to public services should be on the basis of merit by an open invitation providing equal opportunity to all the eligible persons to participate in the selection process. The dependent of employees, who die-in-harness, do not have any special claim or right to employment, except by way of concession that may be extended by the employer under the rules by separate scheme, to enable the family of the deceased to get over the sudden family crisis. 12. The petitioner's application for compassionate appointment has been rejected on the ground that as per Circular dated 10.06.2003 issued by State of Chhattisgarh existing at the time of death of the father of the petitioner, there was no provision for consideration of case of minor children for compassionate appointment. Admittedly, the petitioner was minor at that time and her mother has also made an application that as her children are minor, their right may be protected and the application for appointment on compassionate ground would be made after they attained the age of majority. It is also the case of the petitioner that as soon as he attained the age of majority, he made an application for compassionate appointment, which has been rejected merely on the ground of non availability of any provision for appointment on compassionate ground in the previous policy. 9 13. In the matter of N. C. Santosh (Supra), a three-judge Bench of the Hon'ble Supreme Court, at paragraphs 14,15,16,17 & 19, observed as follows :- 14. This Court in SBI vs. Raj Kumar reported in (2010)11 SCC 661 while reiterating that no aspirant has a vested right to claim compassionate appointment, declared that the norms that are in force, when the application is actually considered, will be applicable. The employer’s right to modify the scheme depending on its policies was recognized in this judgment. Similarly in MCB Gramin Bank vs. Chakrawarti Singh reported in (2014) 13 SCC 583 this Court reiterated that compassionate appointment has to be considered in accordance with the prevalent scheme and no aspirant can claim that his case should be considered as per the scheme existing on the date of death of the Government employee. 15. However in Canara Bank & Anr. vs. M. Mahesh Kumar reported in (2015) 7 SCC 412 in the context of major shift in policy, whereunder, instead of compassionate appointment (envisaged by the scheme dated 8.5.1993), ex gratia payment was proposed (under the circular dated 14.02.2005), the Court adopted a different approach. Noticing the extinguishment of, the right to claim appointment, this Court held the “dying in harness scheme” which was prevalent on the death of the employee, be the basis for consideration. 16. A two judges bench headed by Justice Uday U. Lalit noticed the Supreme Court’s view in SBI vs. Raj Kumar (supra) and MCB Gramin Bank vs. Chakrawarti Singh (supra) on one side and the contrary view in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the necessity of resolution of the conflicting question on whether the norms applicable on the date of death or on the date of consideration of application should apply. Accordingly, in State Bank of India & Ors. vs. Sheo Shankar Tewari reported in (2019) 5 SCC 600 the Court referred the matter for consideration by a larger Bench so that the conflicting views could be reconciled. 10 17. The above discussion suggest that the view taken in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the contrary view of the coordinate bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik vs. State of Karnataka & Ors, reported in ILR (1999) Kartanataka 2648 it can not be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee. 19. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.” 14. The N. C. Santosh (Supra) case has further been followed with approval by Hon'ble Supreme Court in the case of State of Himanchal Pradesh Vs. Abhishek Kumar reported in (2024) 5 SCC 280 in paragraph 8. Furthermore, Hon’ble Division Bench of this Court in the matter of State of Chhattisgarh & others vs. Smt. Sweta Singh (supra), relying upon the case of N.C. Santosh (supra) held that the policy in force at the time of consideration of the application of the petitioner is relevant. 15. In light of the aforesaid law laid down by Hon'ble Supreme Court in aforecited cases (supra), impugned order dated 03.09.2015 (Annexure P-10) passed by the District Education Officer, Janjgir-Champa cannot 11 be sustained, therefore, it is liable to be and is hereby set aside. The petitioner is permitted to make fresh representation/application alongwith all necessary documents for compassionate appointment within a period of 30 days from the date of receipt of copy of this order and, thereafter, respondent authorities are directed to consider and decide the representation filed by the petitioner within a further period of 60 days from the presentation / submission of representation by the petitioner in light of policy dated 14.06.2013 issued by General Administration Department, State of Chhattisgarh, Raipur in accordance with law. 16. It is made clear that delay in filing the application for compassionate appointment will not come to rescue of the respondent/State, as at the time of the death of the father of the petitioner, he was minor and his right was protected by his mother by filing application before Block Education Officer, Malkharouda, District Janjgir-Champa stating that as soon as the petitioner became major without any delay, the application seeking compassionate appointment was made, therefore, the delay may not be a ground for rejection the application for grant of compassionate appointment to the petitioner. 17. In light of above fact situation of the case, writ petition is allowed to the extent indicated herein-above. No order as to costs. Sd/- (Sachin Singh Rajput) JUDGE amita AMITA DUBEY Digitally signed by AMITA DUBEY Date: 2025.07.22 16:26:49 +0530